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Burns v. Fenoglio

United States District Court, S.D. Illinois

December 23, 2014

TYRONE BURNS, Plaintiff,
JAMES FENOGLIO, [1] Defendant.



Plaintiff, Tyrone Burns, an inmate housed at the Lawrence Correctional Center ("Lawrence"), filed a Complaint on December 19, 2011, pursuant to 42 U.S.C. ยง 1983, alleging that a number of prison officials and health care providers were deliberately indifferent to his serious medical need in violation of the Eighth Amendment. This matter was originally dismissed at screening in August 2012 for failure to state a claim upon which relief could be granted, and judgment was entered (Doc. 13). On appeal, however, the Seventh Circuit Court of Appeals vacated the judgment and remanded this matter as to the claims against Defendant James Fenoglio, a doctor at Lawrence (Doc. 32). Plaintiff now is proceeding on a single count that Dr. Fenoglio was deliberately indifferent to his serious medical need by delaying treatment for a painful tumor in his right hip for an eight month period beginning in November 2010.

This matter is currently before the Court on Dr. Fenoglio's motion for summary judgment, which he filed on May 1, 2014 (Doc. 68). Burns filed a timely response in opposition to the motion for summary on June 2, 2014, which addressed the merits of Dr. Fenoglio's argument and provided additional evidence for consideration (Doc. 71). For the reasons set forth below, the motion for summary judgment is denied.


The undisputed facts reveal that Burns first noticed a lump the size of a walnut on his right hip in April of 2010 while he was not incarcerated (Doc. 69-1, p. 6). He went to the emergency room at John Stroger Hospital in Chicago, Illinois, where he was prescribed pain medication[2] and instructed to appear at a follow-up visit ( Id. at pp. 5-6). At a follow-up visit in May 2010, Burns was told by a doctor that a biopsy would need to be performed ( Id. at p. 5). Prior to the biopsy being performed, however, Burns was arrested for armed robbery and incarcerated (Doc. 69-2, p. 2).

Burns was held at the Cook County Jail for the first couple weeks following his arrest, and then he was transferred to Stateville Correctional Center during the first week of June 2010 ("Stateville") ( Id. ). When he arrived at Stateville, Burns was examined by Dr. Diane Schwartz, who referred him to Dr. Sylvia Mahone, the head doctor ( Id. at p. 7). A week later, on June 22, 2010, he was seen by Dr. Mahone ( Id. at p. 8; Doc. 71, p. 8). Burns complained that the lump was getting bigger and that it hurt when he walked (Doc. 71, p. 8). Dr. Mahone prescribed ibuprofen for the pain and referred Burns to the University of Illinois at Chicago Medical Center for a biopsy (Doc. 69-1, p. 8; Doc. 71, p. 8; see Doc. 69-2, p. 6). The referral order indicated that the matter was "urgent" (Doc. 71, p. 8). According to Burns, Dr. Mahone told him that she thought the condition might be lymphoma, which is a form of cancer ( Id.; Doc. 69-2, p. 2). On the referral order, however, Dr. Mahone noted that it was a "probable lipoma, " which is a "benign form of a soft tissue growth" (Doc. 71, p. 8; Doc. 69-2, p. 2). Dr. Mahone's referral was denied on collegial review, and an alternate plan was approved which placed Burns on a medical hold and directed that he should be re-evaluated the following month (Doc. 71, p. 9).

Burns put in another sick call, and he was seen by Dr. Mahone on June 28, 2010 (Doc. 69-2, p. 6). Dr. Mahone noted that Burns's lab results were within normal limits and his xray was negative ( Id. ). Dr. Mahone prescribed Tylenol to Burns because he complained that the ibuprofen was not helping the pain ( Id. ). According to Burns, at that time, his pain was "like an eight out of ten, " but Dr. Mahone would not give him "strong enough medication" (Doc. 69-1, p. 9). Burns also testified that Dr. Mahone told him to be patient because it could take up to six months to receive outside treatment ( Id. at p. 8).

Burns testified that he was taking the over-the-counter pain medication "like they were candy because he was in so much pain" ( Id. at p. 9). He stated "I don't wish that pain on anybody, man. It was just horrible." ( Id. ). He further testified that the over-the-counter pain medication helped a little bit at first, but as the lump grew, it did nothing to alleviate his pain ( Id. at pp. 9-10). He continued taking the over-the-counter pain medication because it was all he had; he stated "I would eat four or five of them things, the 800's" ( Id. ). But after three or four months, the medication negatively affected his stomach and his bowel movements ( Id. at p. 9).

Burns was at Stateville until November 2010, at which time he was transferred to Lawrence ( Id. at p. 10; Doc. 69-2, p. 2). He indicates that during the approximately six months that he was incarcerated at Stateville, the lump grew in size, he experienced severe pain, the pain medication did not help and was causing undesirable side effects, he could not sleep on his right side, and he could not exercise, which caused him to gain thirty pounds (Doc. 69-1, pp. 8-11). No biopsy had been performed by the time he was transferred to Lawrence ( Id. at p. 10).

Upon his arrival at Lawrence, Burns underwent a reception screening by a nurse on November 16, 2010 (Doc. 69-2, p. 7). The nurse noted that he had a tumor on his right hip ( Id. ). According to Burns, the nurse told him that he would automatically be put in to see Dr. Fenoglio (Doc. 69-1, p. 12).

By January 2011, Burns still had not seen Dr. Fenoglio, so he put in a sick call request ( Id. at p.12). Burns testified that he saw Dr. Fenoglio sometime in January 2011, and the following exchange occurred:

Yeah, when I first seen him he said, he looked at my hip, and he was like, man, what is that? And I was like, man, it's a tumor. And he said oh don't worry about it, it might go away. I said, man, if you look at my chart, it has been there for the past seven months. What do you mean it is going to go away? This was Doctor Fenoglio's first words to me.

( Id. at pp. 12, 13-14).

Dr. Fenoglio disputes that he saw Burns in January 2011. He states that Burns's medical records show that he was seen by a nurse on sick call on February 16, 2011 (Doc. 69-2, pp. 2, 9). It was noted that Burns had a lump on his right hip, and the plan at that time was to schedule him to see Dr. Fenoglio on the first available date ( Id. ). According to Dr. Fenoglio, ...

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